By Njoki Karuoya

Anyone who has constructed a building will tell you that unless you invest in a solid and firm foundation, your building will not stand. In the same vein, even as we move towards the reconstruction of our nation through the implementation of Agenda Four, unless we pay attention to the basic unit of our society — the family — we labour in vain.

Three Bills (the Marriage Bill, the Family Protection Bill and The Matrimonial Property Bill) are awaiting the Cabinet’s approval. They all aim at providing legal pillars to the family institution. Of the three, the Marriage Bill has received the most public attention.

Legalisation of polygamy

Contrary to the public discourse, the Bill does not seek to legalise polygamy. Polygamy is already recognised in Kenya as a form of marriage. A visit to the Bomas of Kenya and a walk through the different model homes prove this. Polygamy was and is still practised by majority of Kenyan tribes. The Bill is providing recognition and legal protections for the parties of polygamous or potentially polygamous unions, especially women.

Polygamy as is currently practised exposes women to various injustices and violations of their rights. The Bill has provisions that aim at restoring order in polygamous marriages. First is the requirement that at the time of registration, parties must declare their intention on the form of marriage desired. Thus, right from the outset, all parties to the marriage will know whether the marriage is monogamous, polygamous or potentially polygamous.

The question we ask Kenyans is; if we as a society cannot expect or demand transparency in the most basic unit of our society, can we expect it from elsewhere?

The Bill also provides that all marriages have equal status before the law. It also allows for the registration of all marriages including those celebrated under customary law. The obvious benefit is that the temptation for men in polygamous marriages to sneak off with one wife and marry her ‘under certificate’ will reduce.

Monogamous marriages

The Marriage Bill does not seek to assault the sanctity of monogamous marriages. What the Bill is doing is consolidating all the marriage laws by giving equal legal status to all marriages that exist in Kenya. There are very clear provisions in the Bill relating to monogamous marriages. Under the proposed law, individuals who marry under systems that allow only for monogamy would not be able to convert their marriages to polygamous unions. Likewise, those who are already in polygamous marriages cannot convert to monogamous marriage.

Come-we-stay marriages

Public discussion suggests that the Bill is adopting a casual attitude to marriage. This is not the position as it has made provisions that advocate for the solemnisation of marriages. It also makes registration of marriages easier. While the Bill does not provide for come-we-stay marriages, it does allow for the presumption of marriage, which affords protection to individuals who are unable to formalise their marriages for a variety of reasons. It is expected that by giving equal status to all marriages, people will increasingly formalise their marriages.

Payment of dowry

Dowry is recognised in the Bill as part of our cultural heritage. However, there is a deliberate shift from the modern day perception of dowry as bride purchase. This notion is a major contributor to domestic violence and other abuses that women suffer in marriages.

There are instances when the exorbitant demands by a girl’s parents are the reason why partners do not solemnise their union. The Bill, therefore, provides that the non-payment of dowry shall not nullify a marriage.

Divorce

Another argument raised against the Marriage Bill is that it allows for divorce on frivolous grounds. This again, is not the position. If the Bill is passed into law, it will for the first time in Kenyan law allow for reconciliation as a way of resolving marital conflicts. Therefore, when there is a conflict in the marriage, the court will not be the only solution. Courts shall actually require that parties first try mediation. It is only when mediation fails that courts will intervene. Again, the Bill states that parties can only go to court to seek divorce after two years of the marriage. The Bill requires that for the court to allow divorce, the marriage must have irretrievably broken down.

Moslem and Hindus

Under the existing laws there are separate laws for Muslims, Hindus and Christians. What the Marriage Bill has done is consolidate the various laws with the intention of instituting a single marriage law in Kenya. The consolidation, however, does not mean uniformity. The various religions retain the right to celebrate and conduct marriages in accordance with their respective beliefs. Thus, for example, the exclusive jurisdiction of the Kadhis courts in settlement of disputes among the Muslims is maintained.

Conclusion

The three Bills are what the doctor has prescribed for the health of our nation. We urge Cabinet to approve them and Parliament to proceed with haste to enact them into law. Let us ensure that the family is a place of comfort, both for men and women. When the family, which is a miniature replica of society, is comfortable, so is the nation.